Krishnee Adnarain Appadoo (University College London; The College of Law of England and Wales; Universite Paul Cezanne Aix Marseille III) has posted a working paper entitled: “Enforcement of International Commercial Arbitral Awards: Redress Mechanisms in the Event of Non-Compliance”. Here is the abstract:

International commercial arbitration and its efficiency not only depend on the recognition and enforceability of foreign arbitral awards, but also rest on a willingness by national jurisdictions to minimize the scope for challenging the validity of a duly rendered award. The author will perform an evaluation into the effectiveness of the redress mechanisms available for a party seeking to enforce a foreign arbitral award against an award-debtor seeking to challenge such an award. Furthermore, there needs to be an assessment of the role of international conventions, especially the Model Law and the New York Convention, in determining whether international comity favours enforcement or not. As to the multiplicities of legal systems as well as the problems of interpretation of the provisions of the New York Convention, it has to be determined whether national courts are best placed to solve the complexities inherent in international commercial arbitration. The author argues that to understand the multifarious aims of international commercial arbitration, there is the need to evaluate the interplay of relationships between the enforcing court and the arbitral tribunal; the supervisory courts at the seat of arbitration and the arbitral tribunal, and finally the enforcing court and the supervisory courts at the seat of arbitration. It is argued that whatever the priorities of national courts in their policy with respect to international commercial arbitration, what is sought is not merely a pro-enforcement stance, but rather a willingness to comply with one of the fundamental principles of the New York Convention which is to harmonize the enforcement and recognition of duly made foreign arbitral awards.

Alan Scott Rau (University of Texas at Austin School of Law; University of Texas – School of Law, The Center for Global Energy, International Arbitration, and Environmental Law) has posted “The Errors of Comity: Forum Non Conveniens Returns to the Second Circuit”, American Review of International Arbitration, Forthcoming August 2012/Energy Center Research Paper No. 12-04. Here’s the abstract:

What a federal court is expected to do when asked to enforce a foreign arbitral award — what constraints the Conventions impose on its normal course of adjudication — is of course a vast question. But there is one small piece of the puzzle that recurs frequently, and which has in particular been troublesome to the Second Circuit.: What remains of the inherent power of a common-law court to defer or dismiss litigation of a Convention case on the grounds that it constitutes an “inconvenient” forum?

A decade ago a federal district court in Monde Re, “relying on the doctrine of forum non conveniens,” dismissed a petition to confirm a foreign arbitral award, and the Second Circuit affirmed. The received wisdom ever since has been quite hostile — uniformly to the effect that the obligations imposed by the New York and Panama Conventions make any recourse to the doctrine inappropriate. Despite the fact that the Convention in art. III allows contracting states to continue to use their “rules of procedure” in recognizing or enforcing foreign awards, that is a category of very weak explanatory power: While litigants may have to take local courts as they find them, the one thing art. III cannot be intended to do, is to permit local courts to devise rules that compete with, or undermine, or put up obstacles to, the rules of decision under which the Convention expects them to assess the legitimacy of awards.

Now in Monde Re itself the respondent, the state of Ukraine, had not been a signatory to the contract nor did it participate in the arbitration: Its defense — “I was never a party to any agreement to arbitrate” — would indeed constitute an art. V ground for the refusal of recognition and enforcement. The inquiry then becomes, “just how do we go about answering the question?” — or more precisely, “just who is best placed to evaluate whether these ‘grounds’ are present? Or perhaps, “just who is to make the decision?” It is a familiar notion that the grounds for decision, and the identity of the appropriate decisionmaker, are likely to call for entirely distinct inquiries, and it seems plausible to say that the former may be so intertwined with the need to obtain foreign-source evidence, and with the need to assess foreign law, that it may become prudent to defer the decision to a foreign court.

But by contrast the Second Circuit’s latest venture into the area, in Figueiredo Ferraz, is astonishing: Here the court deferred the enforcement of a Peruvian award on the basis of the “public interest factors” called for in the usual forum non conveniens analysis — and these “factors” did not refer in any way to any supposed difficulties a U.S. court might face in establishing the identity of the “proper party.” Instead the “public interest” was entirely that of Peru, for Peruvian legislation imposed a limit on what a government agency was permitted to pay annually in satisfaction of a judgment against it. Apparently such “public factors” were closely congruent with considerations of international comity. But none of this even comes close to being an art. V ground for the refusal of recognition and enforcement, and in a Convention case the usual recourse to a court’s “discretion” must be foreclosed: While by its terms the Convention may allow a contracting state to enforce awards even where the canonical art. V grounds are present, it extends no leeway whatever to refuse to do so when they are not.

Whether on a motion to confirm a Convention award — or at an earlier stage on a motion to stay litigation or compel arbitration — a doctrine of forum non conveniens must in the structure of our law have only the most marginal presence. Anything more robust would be in considerable tension with the goals of the Convention to increase the currency of awards by limiting challenges and expediting enforcement. But although forum non must play a slender role of only intermittent interest, it has a role nonetheless, whenever a Convention defense is in play and the identity of the appropriate decisionmaker is in doubt. The trick is to preserve the classic virtues of prudence and restraint and economy of means in adjudication, while at the same time managing to respect the structure of the Convention, and being alert to the policies in support of the arbitral process that the Convention seeks to advance.

S.I. Strong (University of Missouri School of Law) has posted “Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS”, Journal of Dispute Resolution (forthcoming)/University of Missouri School of Law Legal Studies Research Paper No. 2012-12. Here is the abstract:

To the uninitiated, international commercial arbitration may seem as if it “isn’t all that different” from domestic arbitration or litigation. However, the truth of the matter is that international commercial arbitration is an extremely challenging area of law, full of traps for inexperienced parties.

This is particularly true with respect to the parties’ ability to seek relief from U.S. federal courts. While some advocates may believe that a visit to the judge is the best and fastest way to get results in certain types of procedural disputes, that tactic is often inappropriate in international arbitral proceedings, where the tribunal’s jurisdiction and powers are frequently in tension with the jurisdiction and power of various national courts (since there may be multiple courts that could potentially become involved with a particular matter).

Quite simply, this area of practice is unlike any other, and the only way to avoid making expensive and time-consuming errors is to gain an overview of the process from a specialist’s perspective. This Article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this Article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole.

Written especially for busy lawyers, this Article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique challenges that arise in this complex area of law. Experienced counsel will also find the discussion helpful, not only as a means of explaining the process to clients and junior colleagues but also as a tactical tool to help consider various options in situations where a U.S. federal court may become (or has become) involved in an international arbitral proceeding.

I have published a new article in the latest issue of the Canadian Bar Association’s Canadian International Lawyer journal entitled, “Adjudicating International Human Rights Claims in Canada”, (2011), 8(3) Cdn. Int. Lawyer 117-133. Here is the abstract:

This article addresses the issue of the privatization of justice and whether a social contract model is appropriate in disputes affecting the public interest, if one accepts the premise that international human rights claims fall under the rubric of “public order” or public interest. The article then explores the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada against corporate and state actors, both from the perspective of litigation and arbitration. It concludes with an overview of recent federal legislative reforms relating to state-sponsored terrorism and international human rights standards.